Can the exceptional nature of the COVID-19 emergency jeopardise certain democratic principles in the long term? In his article Can a virus undermine human rights?, published in The Lancet, Olivier Nay reflects precisely on this: the measures that governments have decided to take in the face of the magnitude of the health risks caused by the COVID-19 pandemic, and the challenges that these pose to the defence of human rights.
According to Nay, the idea that the state of need justifies the declaration of a state of emergency provides a legal framework for restricting individual freedoms over a given period of time, while health security becomes a matter of public security.
Recent mass surveillance technologies are an important point in the discussion on how to deal with the COVID-19 pandemic. China – the best-known example – has used drones, facial recognition cameras; but South Korea, Singapore and Israel have also exercised intrusive biopolitics, where all citizens could be observed, controlled and monitored in every move. Of course, these new technologies have proved useful in containing COVID-19 infection, but how this data will be stored in the long term is unknown, and we still do not know how tempting it will be for governments to maintain greater surveillance of the population even after the pandemic.
From this situation, according to Nay, three main risks arise. The first is that, in the face of a possible new health threat, some of the exceptional measures adopted may fall within the scope of ordinary legislation. The second is that governments may take advantage of this crisis to manage a so-called shock strategy to strengthen a surveillance policy. Thirdly, that fear could affect the value that citizens attach to freedom: in the face of biological and environmental threats at global level, people could therefore give up constitutional rights in the name of security.
On the other hand, moments of crisis may also lead to new and positive ways of considering common goods and fundamental rights. We can therefore start thinking about post-COVID-19 reconstruction without evading the debate on fundamental rights, especially in countries with weak privacy and data protection policies:
National legislatures should adopt adequate rules to ensure that health surveillance and monitoring policies will be strictly prescribed by law, proportionate to public health necessities, done in a transparent manner, controlled by independent regulation authorities, subject to constant ethical reflection, non-discriminatory, and respectful of fundamental rights.